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Opposition to Dismiss

Opposition to Dismiss

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Published by David Codrea
Prosecution opposition to defense motion to dismiss counts and hold evidentiary hearing in Reese gun case
Prosecution opposition to defense motion to dismiss counts and hold evidentiary hearing in Reese gun case

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Categories:Types, Business/Law
Published by: David Codrea on Mar 05, 2013
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03/05/2013

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW MEXICOUNITED STATES OF AMERICA,))Plaintiff,) CR No. 11-2294 RBvs.))RICK REESE,) TERRI REESE, and)RYIN REESE, ))Defendants.)UNITED STATES’ RESPONSE IN OPPOSITION TO MOTION TO DISMISS WITH PREJUDICE THE FOUR REMAINING COUNTS OF THEINDICTMENT BASED ON
BRADY/GIGLIO
VIOLATIONS
On February 1, 2013, the Court granted Defendants a new trial based on its conclusionthat the United States violated
Giglio
by failing to disclose until after trial impeachmentinformation relating to a witness called in the United States’ case-in-chief.
See
Doc. 404.Defendants now have moved for an order dismissing with prejudice the remaining counts of theindictment.
See
Doc. 419. As explained below, however, Tenth Circuit precedent establishesthat dismissal is not an available remedy for a
Giglio
violation. The most severe sanction adistrict court in this circuit may impose for a
Giglio
violation is that which this Court already hasimposed – granting a new trial.Alternatively, even if the Court disagreed with current Tenth Circuit precedent, there wasno act or omission by any member of the United States Attorney’s Office (“USAO”) with anyconnection to this case that reasonably could justify the extraordinary sanction of dismissal.Finally, the claim in the motion to dismiss that the USAO has engaged in a “pattern andpractice” of suppressing
Brady
/
Giglio
information, Doc. 419 at 2, is thoroughly andfundamentally inaccurate. The Court should deny the motion to dismiss and should do so1
Case 2:11-cr-02294-RB Document 422 Filed 03/04/13 Page 1 of 18
 
without granting an evidentiary hearing.Defendants’ Claim Is Specific and NarrowAt the outset, it is crucial for the Court to focus on the narrow legal basis on which themotion to dismiss wholly rests. The caption of the motion makes clear that the relief sought is“[b]ased on
Brady
/
Giglio
[v]iolations,” and the motion in substance relies heavily on
Government of Virgin Islands v. Fahie
, 419 F.3d 249 (3d Cir. 2005), a case that establisheddismissal as a remedy (in the Third Circuit) for
Brady
/
Giglio
violations. Furthermore, theCourt’s order granting a new trial also was premised solely on the finding of a
Brady
/
Giglio
violation.
See
Doc. 404 (applying the relevant three-prong test for determining such violations).Despite the specificity and narrowness of the issues before the Court, Defendants confusethem by relying on language from cases that address entirely separate doctrines of law. Forinstance, in pages 2-5 of their motion, Defendants cite repeatedly to
United States v. Morrison
,449 U.S. 361 (1981), and assert that
Morrison
guides trial courts in fashioning remedies for
Brady
/
Giglio
violations.
See,
 
e.g.
, Doc. 419 at 3 (“Where the government has violated its
Brady
obligations, the court must ‘identify and then neutralize the taint by tailoring relief appropriate inthe circumstance.’
United States v. Morrison
, 449 U.S. 361, 364 (1981).”). But
Morrison
saysnothing about what a court should do when it has found a
Brady/Giglio
violation, for it was acase that dealt instead with the remedy for a violation of the Sixth Amendment right to counsel.Similarly, the motion to dismiss refers the Court to
Arizona v. Youngblood
, 488 U.S. 51(1988), for guidance in fashioning a remedy for a
Brady/Giglio
violation.
See
Doc. 419 at 3.Defendants go so far as to include what they represent to be a quotation from
 Youngblood
: “Theinquiry into bad faith ‘turns on the government’s knowledge of the exculpatory value of theevidence at the time it was lost or destroyed [or suppressed].’
 Youngblood
, 488 U.S. at 57.”2
Case 2:11-cr-02294-RB Document 422 Filed 03/04/13 Page 2 of 18
 
Doc. 419 at 3 (brackets in original). This re-packaged excerpt, however, bears the capacity tomislead the Court as to the legal proposition for which
 Youngblood
stands. The actual quotationused the word “police’s” rather than “government’s.”
 Youngblood
, 488 U.S. at 56-57 n. Thismis-quotation largely would be innocuous were it not for the insertion by Defendants of thebracketed phrase “or suppressed” into their quotation. The combined effect of the two libertiesthat Defendants have taken with this excerpt renders it misinformative in the extreme. As theCourt knows,
 Youngblood
dealt only with what legal standard a court should apply when thepolice have
lost
or
destroyed
potentially exculpatory evidence. The majority opinion in
 Youngblood
took pains to point out that its analysis was
different
from that employed in thecontext of a
Brady
violation.
See
488 U.S. at 55-56 (“There is no question but that the Statecomplied with
Brady
and
Agurs
here. . . . If Respondent is to prevail on federal constitutionalgrounds, then, it must be because of some constitutional duty imposed over and above thatimposed by such cases as
Brady
and
Agurs
.”). That Defendants nonetheless have chosen tomisshape and disfigure the holding of 
 Youngblood
to make it seem as if it applies to a
Brady
violation is inexcusable. There is still more. The motion to dismiss references a court’s power under Federal Ruleof Criminal Procedure 16(d)(2)(D) to “enter any order that is just under the circumstances.”
See
Doc. 419 at 2-3. That provision, of course, is triggered only by a failure to comply with Rule 16itself. The Court has not found that the government violated Rule 16, nor have the Defendantsalleged such a violation. And Defendants’ citations to
United States v. Leon
, 468 U.S. 897(1984),
Franks v. Delaware
, 438 U.S. 154 (1978), and
Kyles v. Whitley
, 514 U.S. 419 (1995) areof no assistance to the Court because none of them analyzed the proper
remedy
for a
Brady/Giglio
violation.3
Case 2:11-cr-02294-RB Document 422 Filed 03/04/13 Page 3 of 18

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